State of Florida v. United States of America

September 12, 2011

On May 19th, 2011, Florida Governor Rick Scott signed Florida’s House Bill 1355, a mammoth 158-page omnibus bill, which includes language that restricts the opportunity and ability of citizens and grassroots organizations to conduct voter registration drives, reduces the number of days in the state’s early voting period, and eliminates the ability for registered voters who have recently moved between Florida counties to provide notice of their change of address on election day and still cast a regular ballot.

As the Brennan Center’s Lee Rowland wrote earlier, the burdens of this bill will fall disproportionately on low-income and minority voters: the very Floridians that already face the biggest hurdles to vote. And the groups that try to register these voters, from student organizers to the League of Women Voters, could be penalized for their attempts to bring more eligible citizens into our democracy.

Five of Florida’s counties are covered by Section 5 of the Voting Rights Act, which requires states to submit election changes to the federal government for review. States can do this either by seeking “preclearance” from the Department of Justice, or by filing a lawsuit before a federal court in the District of Columbia. The state of Florida originally submitted the new law to the Department of Justice for review, and the Brennan Center, alongside the League of Women Voters of Florida, the Lawyers’ Committee, and Democracia USA joined forces to submit detailed comments to the Department demonstrating that the law reduced opportunities for voting and unlawfully restricted voter registration – and in the process, disproportionately hurt Florida’s minority voters.

Before the DOJ issued its ruling on the Florida law, Florida pulled the controversial provisions of its election law from the Justice Department’s review and chose to pursue approval of the changes in court, prompting the League of Women Voters of Florida and Democracia (now a voting rights project of the National Council of La Raza, or NCLR), represented by attorneys at the Brennan Center and the Lawyers’ Committee to announce that they would, in turn, file their objections with the court. The groups have filed for--and were granted--intervention in the case to formally oppose the controversial new restrictions on voting and voter registration imposed by H.B. 1355.

The groups argue the law will erect unnecessary barriers to voting and voter registration and will disproportionately harm Florida’s minority voters. The two groups are represented by attorneys with the Brennan Center for Justice at New York University School of Law and the Lawyers’ Committee for Civil Rights Under Law, working in partnership with pro bono counsel from leading law firm Bryan Cave.

The groups’ objections focus on three key effects of the new law:

The law will restrict the opportunity and ability of citizens and grassroots organizations to conduct voter registration drives, which disproportionately register African-American and Hispanic Floridians to vote;

The law will reduce the number of days in the state’s early voting period, and eliminate the option of voting on the Sunday before an election – a day with the highest level of minority turnout; and

The law will make it impossible for registered voters who have recently moved between Florida counties to provide notice of their change of address on election day and still cast a regular ballot, placing a burden on voters who tend to move more frequently, including low-income and minority voters.

On March 2, the Justice Department filed its position in that case, opposing new provisions of Florida’s election law that place new burdens on community-based voter registration groups and cut down on the early voting period.

“As to the third-party voter registration and early voting changes enacted… respectively, the United States’ position is that the State has not met its burden, on behalf of its covered counties, that the two sets of proposed voting changes are entitled to preclearance under Section 5 of the Voting Rights Act,” the DOJ court filing said.

The Court heard oral argument on June 21. On August 16, the court issued an opinion and findings of fact. The Court denied preclearance of the reduction of days and change in hours for early voting. It found that Florida had not carried its burden of showing that the changes to early voting will not have a racially discriminatory effect on voters in the covered counties. The Court granted preclearance to procedural changes for registered voters who move between counties. Relying in part on Florida’s representation that provisional ballots cast by movers will be counted absent evidence of fraud, the court found this change would not materially burden minority voters.